2017 PLP 185 (CLCN)

ZAFAR AHMED RAJPUT, J.

By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for the following reliefs: a) That, this Honourable Court may be pleased to direct the respondent No.2 extend the contract period to the petitioner for 2-years more as it was extended from time to time in past to the previous contractor enabling the petitioner to meet the investment which petitioner made in the rest house for its maintenance. b) That, this Honourable Court may be pleased to restrain the respondent No.4 Manager Auqaf Sehwan not to take the possession of the rest house from the petitioner. The respondents further be restrained from auction of the contract in respect of the rest house at Dargah Lal Shahbaz Qalander Sehwan Sharif. c) Any other relief which this Honourable Court deems fit and proper may be awarded to the petitioner.

2. Briefly stated facts of the case, as narrated in the memo of petition, are that the petitioner, who is a contractor, obtained a contract from the respondents in an open auction for Auqaf Rest House, situated at Dargah Qalandar Lal Shahbaz, Sehwan for a period of one year w.e.f. 28-11-2013 to 27-11-2014 by giving highest bid of Rs.2,86,000/-, which was confirmed by the respondent No.4 vide his letter No.AUQ (CAA)2013/1384 dated 16-12-2013. After completion of the contract period, i.e. one year, the petitioner moved applications to respondents Nos.2 and 4 on 27-09-2014 and 14-11-2014, respectively, for giving him the contract for a further period of three years. It is the case of the petitioner that there is a precedent of extension of the contract, as previously the contract given to one, Nasir Mehmood for the period of three years from 21-11-2003 to 20-11-2006, was extended twice after its expiry for the further period of three years from 21-11-2006 to 20-11-2009 and 21-11-2009 to 20-11-2012, but the respondents Nos. 2 and 4 did not consider his application for extension of contract as they want to give the same to a person of their choice; therefore, the respondent No.2 has got an Auction Notice published in newspapers, vide letter No.05-12-2014, depriving the petitioner from his legal, legitimate and constitutional right.

3. Heard the learned counsel for the petitioner and perused the material available on record.

4. The learned counsel for the petitioner has mainly contended that previously the alleged contract was given for a period of three years but in case of petitioner, it was given for one year only and the same is not being extended by the respondents malafidely. He has also contended that by not following the precedent of extension of the contract, the respondent No.2 have violated the Article 25 of the Constitution that speaks about the equality of the citizens. Lastly he has contended that after obtaining the contract the petitioner has incurred a huge amount for maintenance of subject Rest House and since no adequate efficacious remedy is available, the petitioner has maintained this petition. In support of his contention, the learned counsel has relied upon the following case-law: i. Hazara (Hill Tract) Improvement Trust, through Chairman and others v. Mst. Qaiser Elahi and others (2005 SCMR 678), wherein the allotment of a plot to predecessor of respondent No.1 was cancelled by the Chairman of Appellant's Trust without any approval of Board of Trustees and providing an opportunity of hearing to her on the ground of non-construction of building within period stipulated in sale deed. Respondents impugned the order of appellant before the Peshawar High Court in petition, which was allowed. Appellants then preferred Civil Appeal, which was dismissed by the apex Court observing the said act of Chairman of Appellant's Trust with mala fide intention as the sale deed of respondent No.1 was intact and she had paid non-utilization fee much prior to the decision of the Board and the same was in violation of principle of natural justice enshrined in the maxim "Audi Alteram partem" (no one should be condemned unheard). ii. 'Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) It has been held that where, in relation to contractual rights having a public element, the manner, the method and the motive of a decision of entering or not entering into a contract by a public functionary is open to judicial review on the touchstone of reasonableness, relevance, fair play natural justice, equity and non-discrimination. iii. 'Haji Amin v. Pakistan Trading Corporation (Pvt.) Ltd. and another (PLD 2009 Karachi 112) It has been held that normally a writ for the enforcement of a contractual liability is not maintainable. However, State and any functionary acting under the State has to act in fair and transparent manner and, if disputed question of facts are not involved relief in exercise of power under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973 in appropriate matters have not been denied, merely because issues in the matter relates to contractual obligation.

5. The subject Rest House is owned by the Auqaf Department, Government of Sindh. It may be observed that the right in public/State property, which in case in hand was alienated in favour of petitioner through auction for one year, originally belonged to the public/State. The State being a virtual entity exercises its authority through the public functionaries therefore, whenever a right belonging to the public/State is going to be alienated, the public functionary is under obligation to protect and preserve the transparency and to ensure the maximum gain for the public exchequer, essentially extending equal opportunity to all potential competitors, who intend to acquire such property under contract on lease, license etc. There can be no other view to the proposition that the public functionaries, deriving authority from or under law, are obligated to act justly, fairy, equitably, reasonably, without any element of discrimination and squarely within the parameters of law.

6. In the instant case, the alleged contract of the petitioner has already expired on 27-11-2014. It is not the case of the petitioner that his contract had carried any obligatory clause of its extension for any further period. Therefore, prima facie the respondent No.2 by issuing Auction Notice, through publication in newspapers, in respect of subject Rest House for the period of one year has adopted just, fair and a proper procedure/course to ensure transparency and maximum gain. The petitioner is not entitled for any special privilege or preferential treatment, if he intends to take the subject Rest House on contract he should come in competition by participating auction proceedings.

7. So far the contention of learned counsel for the petitioner with regard to the precedent of extension of contract is concerned, we are afraid; we are not convinced. No unjustified and arbitrary action or event that happened at an earlier time can be given perpetuity-two wrongs do not make a right. The case-law cited by the learned counsel for the petitioner is distinguishable, so far the facts of the case in hand is concerned.

8. In view of what has been discussed above, we do not find any merit in this petition, therefore, the same is dismissed in limine, along with listed application. ZC/T-4/Sindh Petition dismissed.